So when can I exclude a bidder? According to regulation 23 of the procurement regulations, a public body (including an RSL) carrying out a procurement exercise shall treat as ineligible and disqualify a bidder, if it has actual knowledge that the bidder, its directors (if the bidder is a company) or any other person with powers of representation, decision or control of the bidder has been convicted of certain offences, including:

• Conspiracy
• Corruption
• Bribery
• Incitement to commit a crime
• Fraud
• Taxation offences
• Money laundering
• Attempting to pervert the course of justice

Obviously it would be overly burdensome to require actual evidence from every bidder to establish whether it has been convicted of any of these offences. Therefore it is recommended that the public body asks for a declaration from each bidder that it has not been convicted of any of the offences listed in regulation 23.

The regulations also state that a public body may disregard the prohibition if it is satisfied that there are overriding requirements which justify doing so. Unfortunately the legislation gives no examples of such requirements but guidance dictates that this exception would only apply in the most serious of circumstances, e.g. a national emergency.

A public body is entitled but not obliged to treat as ineligible or decide to exclude a bidder on certain grounds, including where the bidder is:

• Insolvent
• Has been convicted of an offence in connection with the conduct of its business
• Has committed an act of grave misconduct in the course of its business
• Has failed to fulfil its obligations in relation to the payment of social security contributions or taxes
• Is guilty of serious misrepresentation in providing information required under the relevant regulations
• Is not licensed in the country in which it is established to provide the relevant services under the contract
• Is not registered on the professional or trade register of the country in which it is established - in the UK this simply means registered as a company/friendly society or has declared on oath that it is carrying on business in the relevant trade in the country in which it is established at a specific place under a specific trading name..

If you are thinking of embarking on a procurement exercise and would like some assistance, please contact our team.